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Will Scalia's Replacement Come From the DC Circuit?

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By Jonathan R. Tung, Esq. on February 16, 2016 11:58 AM

Now that one of the most dogged voices of social conservatism has passed away, many are wondering what the implications will be for many of the SCOTUS cases that are scheduled to be heard by the justices.

As Capitol Hill sets about tripping over itself after Scalia's death, let's consider what the implications for the DC Circuit will be.

A Feeder School of Sorts

Back before the latest generation of lawyers were even born, Antonin Scalia was confirmed as a sitting judge on the United States Court of Appeals for the DC Circuit. Whether people would politely refer to it as such, the "DC Circuit" can roughly be thought of a feeder track for eventual SCOTUS appointment. Justices Scalia, Thomas, Ginsburg, and Chief Justice Roberts all graced that court before being elevated to the highest court.

This trend may be continuing, giving that one of the top contenders for Scalia's seat, Sri Srinivasan, is an Obama-appointed judge on the DC Circuit.

If these were normal circumstances, most eyes would be pointed squarely at the DC Circuit and legal scholars would have already settled on the next would-be appointee. But these aren't normal times. It's never a good time for a great legal mind like Justice Scalia to go, but the timing of his passing is particularly inopportune given the weighty social issues implicated by a handful of cases already scheduled to be argued before SCOTUS.

Filling Scalia's Seat

The battle to fill Scalia's seat has, unfortunately, left little time for mourning. The realities of political rancor has prompted both parties to dust off old legal doctrine as to who can appoint a Supreme Court nominee. The relevant language says that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court."

Republicans, fearful of a liberal majority sitting on the top court, have really dug deep including the invocation of the so-called "Thurmond Rule" -- we leave you to read about the details. Meanwhile, conspiracy theories, which typically wait for a climate ripe with controversy before really taking root, are swirling about the circumstances of Judge Scalia's death.

Ironically for GOPers looking to roadblock any attempt by President Obama's nomination or appointment of Scalia's successor, a firm application of the plain meaning of the words in the Constitution seem rather clear: It is the President's duty to at least nominate a successor. That is, a strict application of Scalia's "textualism" would probably guide recalcitrant Republicans to step aside and let the president name his pick.

Remembering Justice Scalia

Love him or hate him, everyone can agree that he was a titan of the Court and his legacy will last for generations to come. Whoever ends up taking his vacant seat will have some very big -- and very opinionated -- shoes to fill.

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